2022 (5) TMI 316

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....The Adjudicating Authority has allowed CA No. 574/2019 and directed that the Appellant, an ex-Director of the Corporate Debtor, Seitz India Private Limited to transfer the money stated in CA No. 574/2019 back to the Corporate Debtor's account within two weeks. 2. The facts of the case, in brief are that an application under section 9 of IBC filed by the Operational Creditor M/s. Seitz GmbH was admitted vide order of Adjudicating Authority on 8.8.2019 and Mr. Atul Kumar Kansal was appointed as Interim Resolution Professional (IRP), who was confirmed as Resolution Professional ( in short RP) by the Committee of Creditors on 26.9.2019. As the suspended Board of Directors was not cooperating with the RP in providing details of bank accounts and other financial transactions, the RP sought bank statements relating to the corporate debtor from the banks concerned. He also filed an application under section 19(2) of the IBC bearing IA No. 349/2019 regarding non-cooperation of the ex-Directors of the Corporate Debtor. Based on details provided by the concerned banks of the Corporate Debtor, the RP filed CA No. 574/2019 under sections 43, 45 and 66 of the IBC praying for the transfer of mon....

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....ditor filed a section 9 application against Simran Technologies Pvt. Ltd., wherein the Adjudicating Authority vide order dated 3.7.2019 in CP(IB) No. 293/ND/2018 rejected the application of Seitz GmbH. Thereafter the appeal of Seitz GmbH bearing CA AT(INS)No. 776 of 2019 was also rejected on the basis of pre-existing dispute between Seitz GmbH (Operational Creditor) and Simran Technologies Pvt. Ltd. (Corporate Debtor). He has, therefore, argued that there are disputed transactions and payments and the monies sought to be returned from Mr. Sandeep Sood and his companies Lotus Imports and Simran Technologies Pvt. Ltd. are covered by valid business transactions and without considering the reply of Mr. Sandeep Sood in CA No. 574/2019, the correct position would not come out. He has further stated that in CA (AT) (INS) No. 776/2019, this Tribunal, the NCLAT has found that there are various business transactions between the Seitz GmbH and Simran Technologies Pvt. Ltd., which need to be looked into and are the basis of the dispute between the parties, and therefore Mr. Sandeep Sood should not be burdened with returning the money as prayed for by the RP in CA No. 574/2019. 7. The Learned ....

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....he said reply was not taken on record and vide order dated 22.7.2021 (orders were reserved in the case which were pronounced on 12.1.2022). 8. The Learned Counsel for Respondent No.1/RP has referred to the e-mail dated 19.9.2019 (attached at page 160 of the appeal paper book) to show that he had given ample opportunity to the Appellant Mr. Sandeep Sood to explain debited amounts communicated vide e-mail dated 13.9.2019 (attached at pp.152-153 of the Appeal paper book). He has also argued that the ledger account of Seitz India Pvt. Ltd. maintained by Simran Technologies Pvt. Ltd. (attached at pp 163-164 of the appeal paper book) show that monies were debited from the account of Corporate Debtor, but the purpose is not clear. He has also stated that Mr. Sandeep Sood has kept a genset purchased by the Corporate Debtor at his own and no proof of consideration paid for acquiring the genset from the Corporate Debtor has been submitted by Mr. Sandeep Sood. He has finally argued that in the absence of any satisfactory explanation provided by Mr. Sandeep Sood regarding the transactions in question, it is clear that he debited these amounts from the bank accounts of the Corporate Debtor int....

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....ed 4.10.2019 (attached at pp.167-168 of the appeal paper book), he has stated that the Genset lying at his home has been purchased by him against value consideration from Seitz India Pvt. Ltd., but there is no mention about the consideration or any proof thereof. 11. Regarding the non-submission of reply by Mr. Sandeep Sood, we note that the proxy Counsel undertook to file reply within two weeks, when the matter in CA No. 574/2019 was taken up on 16.12.2020. But the reply was not filed and the case was listed for ex-parte hearing on 16.2.2021. While it is correct that a copy of the reply was sent to Mr. Alexander Seitz, it is clear from the order-sheet dated 22.7.2021 that the case had already been proceeded ex-parte vide order dated 21.1.2021 and no reply has come on record nor any relief is sought from the court. Thus, it is clear that the Appellant was completely remis in seeking permission of the Adjudicating Authority for taking its reply on record and hence the matter was finally adjudicated ex-parte. 12. The Learned Counsel for the Appellant has referred to the judgment of NCLAT in the matter of CA(AT)(INS) No. 776 of 2019, with Seitz GmbH as Appellant and Simran Technolog....